Bar MBE 2022 - Constitutional Law Questions And Answers With Actual Test

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Bar MBE 2022 - Constitutional Law Questions And Answers With Actual Test A party has standing when they have CONCRETE STAKE in the outcome of a case at all stages of litigation, including on appe... al. Must establish: 1) Injury - Plaintiffs may only assert injuries they have PERSONALLY suffered or will IMMINENTLY suffer, but the injury does not have to be economic. 2) Causal Connection - Plaintiffs must allege and prove that the defendant caused the injury so that a favorable court decision is likely to remedy the injury (redressability). Article III prohibits courts from issuing advisory opinions. Correct Answers: When does a party have standing to bring a matter to court for adjudication? Generally no. EXCEPTIONS: 1) a claimant with standing in their own right may also assert the rights of a third party if a) there is a close relationship between the plaintiff and the injured third party OR b) the injured third party is UNLIKELY to be able to assert their own rights 2) An organization may sue for its members, if a) the members would have standing to sue b) the interests are germane to the organization's purpose c) neither the claim nor the relief requires the participation of individual members Correct Answers: Can a plaintiff assert claims of third parties not before the court? No, a plaintiff must NOT be suing SOLELY as a citizen or taxpayer interested in having the government follow the law. Citizenship and taxpayer standing are NOT sufficient unless an exception applies. Correct Answers: Can a citizen or taxpayer sue the government for generalized grievances? 1) Taxpayers have standing to challenge government expenditures made pursuant to federal (or state and local) statutes as violating the ESTABLISHMENT CLAUSE. 2) Taxpayers have standing to litigate their tax bill (ex: whether they really owe X dollars) Correct Answers: When does a taxpayer have standing to challenge government expenditures? Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation. 1) hardship that will be suffered without pre-enforcement review (the greater the hardship, the more likely the court will hear the case) 2) fitness of the issues and the record for judicial review (does the court have all that it needs to effectively decide the issue?) Correct Answers: What factors does the court consider to determine ripeness? They must show a likelihood of future harm Correct Answers: What must plaintiffs show when seeking injunctive or declaratory relief? 1) wrongs capable of repetition but evading review 2) defendant voluntarily halts the offending conduct, but is free to resume at any time 3) a class action will not be dismissed if the named plaintiff's claim becomes moot AS LONG AS one member of the class has an ongoing injury Correct Answers: What are exceptions to the general rule of dismissing a case that is moot (plaintiff's injury has ended)? The political question doctrine refers to constitutional violations that the federal courts will not adjudicate. Political questions involve: 1) issues constitutionally committed to another branch of government 2) issues inherently incapable of judicial resolution Examples: 1) challenges based on the "Republican Form of Government" Clause of Article IV 2) challenges to the President's conduct of foreign policy 3) challenges to the impeachment and removal process 4) challenges to partisan gerrymandering Correct Answers: What is the political question doctrine? 1) Most cases go to SCOTUS by WRIT OF CERTIORARI. SCOTUS has COMPLETE DISCRETION to hear these cases a) cases from state courts where 1) the constitutionality fo a federal statute, federal treaty, or state statute is in issue OR b) from federal courts of appeals 2) Appeal - SCOTUS MUST hear cases that come to it by appeal a) this only applies to 3-JUDGE FEDERAL DISTRICT COURT PANEL that grant or deny injunctive relief (usually this situation results from statute) Correct Answers: What are the ways a case can go to the Supreme Court of the United States for review? 1) cases and controversies between states 2) cases and controversies where 1 party is a state 3) cases and controversies affecting ambassadors, public ministers, and consuls (federal courts have concurrent jurisdiction) Correct Answers: When does the Supreme Court of the United States have original and exclusive jurisdiction? Generally, SCOTUS may hear cases only after there has been a final judgment from the highest state court, a federal court of appeal, or a three-judge federal district court. Correct Answers: What is the final judgments rule? SCOTUS will review a state court decision only if they decision is NOT supported by an independent and adequate state law ground. If a state court decision rests on two grounds, one that's state law and one that's federal law, and if the Supreme Court's reversal of the federal law ground will not change the result in the case (because state law is still applicable), then SCOTUS can't hear the case. Correct Answers: What is the rule on adequate and independent state grounds for SCOTUS to hear a case? Eleventh Amendment: bars suits against states in federal court Sovereign Immunity: bars suits against states in state courts or federal agencies Not applicable to local governments (they can be sued). Correct Answers: What is the difference between the Eleventh Amendment and Sovereign Immunity? 1) States may WAIVE this protection and consent to be sued, but the waiver must be explicit 2) Congress explicitly removes the protection - example: States MAY BE sued pursuant to federal laws adopted under Section 5 of the Fourteenth Amendment (note: Congress can't authorize suits against states under other constitutional provisions) 3) Federal government may sue state governments 4) other states can also sue state governments 5) States are not protected from proceedings filed in federal bankruptcy courts Correct Answers: When can states be sued? 1) for injunctive relief 2) for money damages to be paid out of the officer's own pockets State officers may NOT be sued if the state treasury will be paying retroactive damages for the suit. Correct Answers: When are suits against state officers allowed? Federal courts may not enjoying pending state court proceedings. Correct Answers: What is the main abstention doctrine? No, Congress may act only pursuant to an express or implied power. General police power = adopting laws for health, safety, and welfare of citizens Correct Answers: Does Congress usually have general police power? Congress has police power type powers over District of Columbia, federal lands and territories, military bases, and Indian reservations based on its power over the capital and its property power. Correct Answers: Under what limited circumstances does Congress have police power-type powers? The Clause states that Congress has the power to make all laws necessary and proper (appropriate) for executing any power granted to any branch of the federal government. By itself, this Clause cannot support the constitutionality of a federal law. It MUST work in conjunction with another federal law. NOTE: any answer choice is INCORRECT if it states that a law is supported by the Necessary and Proper Clause or is valid under Congress's power to enact legislation necessary and proper Correct Answers: What does the Necessary and Proper Clause state? Congress has the power to tax and spend for the GENERAL WELFARE. It cannot directly legislate general welfare. Taxing and spending may be for any public purpose not prohibited by the Constitution. Most taxes will be upheld if they bear SOME REASONABLE RELATIONSHIP to REVENUE PRODUCTION or if Congress has the power to regulate the activity taxed. Correct Answers: What does Congress's taxing and spending power entail? Congress has the power to regulate all foreign and interstate commerce. To be within Congress's Commerce Clause power, a federal law regulating interstate commerce must either: 1) regulate channels of interstate commerce (ex: roads, air traffic routes, etc.) 2) regulate the instrumentalities of interstate commerce and persons and things in interstate commerce (ex: planes, trains, shipping containers, trucks, etc.) OR 3) Regulate activities (even though local) that have a substantial effect on interstate commerce NOTE: when the activity is NONECONOMIC, the court will not base the substantial effect on cumulative impact, and will UNLIKELY uphold the law NOTE: Congress cannot regulate inactivity. It can only regulate existing activities. Correct Answers: What does Congress's Commerce Power entail? When the regulation is of ECONOMIC or COMMERCIAL activity and the court can conceive of a RATIONAL BASIS on which Congress could conclude that the activity in AGGREGATE SUBSTANTIALLY affects interstate commerce. However, if the regulated intrastate activity is NONCOMMERCIAL and NONECONOMIC, courts generally will not aggregate the effects and the regulation will be UPHELD ONLY IF Congress can show a DIRECT SUBSTANTIAL ECONOMIC effect on INTERSTATE commerce, which it generally will not be able to do. Correct Answers: When will courts uphold Congress's attempt to regulate intrastate activity? The Tenth Amendment states that all power not granted to the United States, nor prohibited to the states, are reserved to the states or the people. Congress may prohibit harmful commercial activities by state governments WITHOUT violating the Tenth Amendment. Correct Answers: What does the Tenth Amendment state? Congress cannot compel state regulatory or legislative action. Correct Answers: What is the AntiCommandeering Principle? By placing conditions on the grant of money to those governments Such grants won't violate the Tenth Amendment, if the conditions 1) are expressly state, 2) relate to the purpose of the program, and 3) are not unduly coercive. Correct Answers: How can Congress induce state and local government action under its spending power? Section 5 of the Fourteen Amendment gives Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the Fourteenth Amendment. Congress may NOT create new rights or expand the scope of rights under this provision. It may act only to prevent or remedy violations of rights recognized by courts. Such laws must be PROPORTIONATE AND CONGRUENT to remedy in constitutional violations. Correct Answers: What is the scope of powers that Section 5 of the Fourteenth Amendment gives to Congress? There must always be bicameralism (passage by both House and Senate). There must also always be presentment (giving President bill to sign or veto)? President must sign or veto the bill in its ENTIRETY. It is unconstitutional for the President to veto part of a bill. NOTE: it is unconstitutional for Congress to attempt to overturn an executive action without bicameralism or presentment Correct Answers: What must happen for Congress to pass a legislative bill? No Correct Answers: Can Congress delegate executive power to itself or others? 1) power to declare war, raise and support armies, and provide for and maintain a navy 2) implied power to investigate to secure information as a basis for potential legislation or other official action 3) power to dispose of and make rules for territories and other properties of the U.S. 4) power to establish uniform rules for bankruptcy 5) exclusive power to establish postal services 6) power to establish uniform rules of naturalization 7) plenary and exclusive power over admiralty issues (Congress leave maritime matters to state jurisdiction) 8) power to coin money and fix standards for weights and measures 9) power to control issuance of patents and copyrights Correct Answers: What miscellaneous powers does the Constitution give to Congress? Yes, however resident aliens are entitled to NOTICE AND HEARING before they can be deported. Correct Answers: Can aliens be refused entry because of their political beliefs? Treaties between U.S. and foreign countries are negotiated by President and ratified by two-thirds of the Senate. Treaties prevail over conflicting state laws. Treaties do NOT prevail over the U.S. Constitution. If a treaty conflicts with a federal statute, the one adopted last in time controls. Correct Answers: How is a treaty ratified and what happens when treaties conflict with other existing laws? Federal laws supersede contradictory state laws, but federal regulations may NOT commandeer state officials. Correct Answers: What is the relationship between federal and state laws in regards to the Supremacy Clause and Tenth Amendment? An executive agreement between the U.S. and a foreign county that is effective when signed by the President and the head of the foreign nation. They can be used for any purpose. Executive Agreements prevail over existing state laws, but NEVER over conflicting federal laws or the Constitution. Correct Answers: How does an executive agreement become effective and what happens when treaties conflict with other existing laws? Presidents have the exclusive power to recognize foreign states and what is included in a foreign state. President has broad discretion in determining whether to admit individuals to the U.S. President has broad powers as Commander-in-Chief to use American troops in foreign countries. Correct Answers: What is the scope of the President's powers in regards to foreign affairs? President appoints ambassadors, federal judge, and officers of the U.S. (with approval of the appointment coming from the Senate). Congress may vest the appointment of inferior officers in the President, the heads of departments, or the lower federal courts. Congress may NOT give itself or its officers the appointment powers. President may NOT make recess appointments (which don't require Senate approval) during intrasession recesses that are less than 10 days. President may fire any executive branch officer (unless removal is limited by statute). Correct Answers: What is the scope of the President's powers in regards to domestic affairs? 1) The removal must be from an office where independence from the President is desirable 2) Congress can't prohibit removal (though it can limit removal to where there is good cause) AND 3) the removal can't be of a single person who heads an agency and exercises substantial discretion Correct Answers: What requirements must be met in order for Congress to limit the President's removal powers when it comes to executive branch officers? The President, the Vice President, federal judges, and U.S. officers can be impeached and removed from the office for treason, bribery, or for high crimes and misdemeanors. Impeachment doesn't remove a person from office (a conviction is required). Impeachment by the house of Representatives requires a majority vote; conviction in the Senate requires a two-thirds vote Correct Answers: How does impeachment work? Executive immunity means the President has absolute immunity to civil suits for money damages for any actions WHILE in office. The President does NOT have immunity for actions that occurred PRIOR to taking office. Correct Answers: What is executive immunity? The President has executive privilege over presidential papers and conversations (the right to keep that information confidential). The privilege must yield to other important government interests. Correct Answers: What is executive privilege? The President has NO immunity to keep the President's financial records from being subpoenaed by a state grand jury, but if the financial records are subpoenaed by a congressional committee, the court must balance the competing interests. Correct Answers: Can the President's financial records be subpoenaed? The President has the power to pardon those accused or convicted of federal crimes. Pardons can ONLY be for federal crimes, not for state crimes or for civil liability. The Pardon power cannot be limited by Congress. Correct Answers: What is the scope of the President's pardon power? Yes, if the veto is overridden by a two-thirds vote of each house. Correct Answers: Can an act still become law if it is vetoed by the President? President's powers over internal affairs are unsettled. They have some power to direct subordinate executive officers and issue executive orders. 1) If the President acts with the express or implied authority of Congress, the President's authority is at its maximum and the President's actions likely are valid. 2) If the President acts where Congress is silent, the action will be upheld unless it usurps the power of another governmental branch or prevents another branch from carrying out its tasks 3) If the President cats against the express will of Congress, the president has little authority, and the action likely is invalid Correct Answers: What is the scope of the President's power over internal affairs? It provides that the Constitution, and the laws and treaties made pursuant to it, are the supreme law of the land. Therefore, if there's conflict between federal law and state and local law, the federal law will preempt the state law. Correct Answers: What does the Supremacy Clause of Article VI state? When a federal and state law are mutually exclusive, the federal law will impliedly preempt the state law. However, states may set environmental standards stricter than federal law unless Congress clearly prohibits this. If as state law impedes the achievement of a federal objective, the federal law will preempt the state law. If Congress evidence a clear intent to preempt state law in a certain field, the federal law will preempt the state law even if a state law does NOT conflict with the federal scheme. The courts will look at the federal regulatory scheme to deduce whether Congress intended to preempt the entire field. If federal laws on a topic are comprehensive or an agency was created to oversee this area, field preemption may be found. Correct Answers: What is implied preemption? Courts will start with the presumption that the historic state police powers are not to be superseded unless that was the clear and manifest purpose of Congress Correct Answers: Wha is the presumption against preemption rule? State and local laws are unconstitutional violations of the Commerce Clause if they place an undue burden on interstate commerce. States may not favor local economic interests or unduly burden interstate commerce. Correct Answers: What is the Dormant Commerce Clause? States may not deprive citizens other states of privileges and immunities it accords its own citizens. Correct Answers: What is the Privileges and Immunities Clause of Article IV? Laws state that interfere with the right to travel are unconstitutional. Correct Answers: What is the Privileges and Immunities Clause of Fourteenth Amendment? 1) Dormant Commerce Clause; UNLESS it is necessary to achieve an IMPORTANT GOVERNMENT PURPOSE a) State or local regulations that discriminate against interstate commerce to protect local economic interests are almost ALWAYS invalid b) To be valid, state and local government must show that no less discriminatory alternatives are available and that it furthers an important, noneconomic state interest 2) Privilege and Immunities Clause of Article IV - if the law discriminates against out-of-staters with regard to their ability to earn their livelihood, it violates this clause UNLESS it is necessary to achieve an IMPORTANT GOVERNMENT PURPOSE. a) law discriminates against out-of-staters b) the discrimination is with regard to fundamental rights or important economic activities c) party is proper; corporations and aliens cannot use the privileges and immunities clause d) discrimination is necessary to achieve an important government purpose Correct Answers: What laws are violated when a law discriminates against out-of-staters AND burdens interstate commerce? 1) congressional approval 2) State as a market participant - state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses 3) favoring government performing traditional government functions (such as a waste disposal); discrimination against interstate commerce in such a case is permissible because it is likely motivated by legitimate objectives rather than by economic protection 4) furthers an important, noneconomic state interest and there are no reasonable non discriminatory alternatives Correct Answers: What are exceptions to the Dormant Commerce Clause? Rational basis Because the states have a history of regulating the internal governance of corporations that they create and have a strong interest in doing so, even a corporate governance statute that heavily impacts interstate commerce may be upheld. Correct Answers: What standard applies to statutes adopted by the state of incorporation regulating the internal governance of a corporation? Dormant Commerce Clause IF the law burdens interstate commerce AND the burdens exceed the state's interest in the action/benefits. The court will consider whether less restrictive alternative are available. Correct Answers: What law might be violated even if a law does not discriminate against out-of-staters? Commerce Clause - yes. Privileges and Immunities Clause of Article IV - no. Correct Answers: Under the Commerce Clause and the Privileges and Immunities Clause of Article IV, may an aliens or a corporation be a plaintiff? Congress has complete power to authorize or forbid state taxation that affects interstate commerce. Correct Answers: What is the scope of Congress's power over state taxation? States may NOT use their tax systems to help in-state businesses. A state may tax activities if there is a SUBSTANTIAL NEXUS to the state. A substantial nexus exists when a business avails itself of the privilege of doing business in the state. Physical presence in the state is not necessary. State taxation of interstate businesses must be fairly apportioned. The taxpayer has the burden of proving unfair apportionment. Correct Answers: What is the scope of the state's taxation powers? Use taxes are imposed on goods purchased outside the state but used within it. Valid under the Commerce Clause unless they are higher than sales taxes. Correct Answers: What are use taxes? No. Commodities in interstate transit are entirely exempt from state taxation. a) Interstate transportation begins when the cargo is delivered to an interstate carrier OR actually starts its interstate journey. b) A BREAK in the continuity of transit does NOT destroy the interstate character of the shipment unless the break was intended to end or suspend the shipment. c) the interstate shipment usually ends when the cargo reaches its destination; thereafter the goods are subject to local tax Correct Answers: Are commodities in the course of interstate commerce taxed? An interstate seller may be required to collect a use tax if the seller has a SUBSTANTIAL NEXUS with the taxing state. A physical presence is NOT required to establish a substantial nexus. Correct Answers: When can a state force sellers to collect use taxes? Usually valid. They key issues is whether there is a substantial nexus between the taxpayer and the taxing state or whether the tax is properly apportioned. Correct Answers: How do you determine the validity of a state's sales tax? They are based on the assessed value of the property in question. Commodities: valid under the Commerce Clause only if property is not longer in interstate commerce Instrumentalities: valid if instrumentality has taxable situs in state and tax is fairly apportioned. Full tax by domiciliary state valid unless taxpayer can prove a defined part has acquired taxable situs elsewhere - taxable situs = whether there are sufficient contacts with the taxing state to justify the tax; basically if the instrumentality receives benefits or protections from the state - tax apportioned on the value of the instrumentality will be upheld if it fairly approximates the average physical presence of the instrumentality in the taxing state Correct Answers: What are ad valorem property taxes?... [Show More]

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